Qualified Immunity and the First Amendment Right to Record Police

Geoffrey J. Derrick, Qualified Immunity and the First Amendment Right to Record Police, 22 B.U. Pub. Int. L.J. 243 (2013).

This is important because it almost always arises in the context of an arrest for photographing or videorecording.

Abstract:

This draft article explores Pearson v. Callahan, 129 S. Ct. 808 (2009), in the context of recent nationwide litigation over the First Amendment right to record police officers in public. Pearson v. Callahan gives judges considering a qualified immunity defense to a civil rights lawsuit the discretion to never reach the merits of the lawsuit, deciding only that the right is not “clearly established.” The Court’s opinion in Pearson uprooted Saucier v. Katz, 533 U.S. 194 (2001), which required courts to address the merits before deciding whether a defendant is entitled to qualified immunity.

The doctrinal shift from Saucier to Pearson coincides with an increase in civil rights litigation nationwide concerning the First Amendment right to record police officers in public. Two recent Circuit Court cases, Am. Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012) cert. denied, 133 S. Ct. 651 (U.S. 2012), and Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011), have affirmed such a right. While the First and Seventh Circuits have laudably addressed the merits of whether the right exists, all other circuits to address the issue have decided only on immunity grounds, i.e. whether the right is “clearly established.” The focus on immunity has a chilling effect on free speech, in particular the role of citizens to oversee law enforcement officials. The article calls for a return to Saucier’s merits-first adjudicatory model in First Amendment civil rights cases to avoid chilling such protected speech.